White v. State

ADKINS, Judge. Stephanie White, appellant, was convicted by a jury in the Circuit Court for Howard County of driving under the influence (“DUI”). In appealing that conviction, appellant presents a single question for our review. Did the trial court err in precluding appellant from calling an expert witness to testify that appellant’s conduct before and after her arrest was consistent with post-traumatic stress disorder (“PTSD”)?

We hold that, because it admitted evidence offered by the State detailing appellant’s post-arrest behavior, the trial court abused its discretion in excluding appellant’s expert testimony attributing that behavior to a psychological condition, rather than alcohol. There was no error, however, in the trial court’s exclusion of the expert’s testimony seeking to explain appellant’s pre-arrest conduct. FACTS AND LEGAL PROCEEDINGS The facts are largely undisputed. On the evening of July 17, 1999, at around 11:30 p.m., Officer Chad Zirk of the ⁵³⁹ Howard County Police Department was on patrol in the Columbia section of Howard County.

While waiting at a red light at the intersection of Little Patuxent Parkway and Cedar Lane, the officer observed a red GMC truck heading eastbound on the Parkway. He testified that “after waiting through a green light [the driver] proceeded through the intersection; when the light was yellow, [she] ... pulled up beside the police cruiser, stopped and asked [him] for directions.” Appellant was the driver. Zirk explained that when she asked him for directions, “her speech seemed to be slurred.” The officer asked appellant to follow him to the nearby hospital parking lot, and appellant complied with his request. In the parking lot, Zirk approached appellant’s vehicle, and observed that appellant’s “eyes were watery, glassy and bloodshot” and that “she had a strong odor of an alcoholic beverage on her breath.” When the officer asked what kind of drinks she had consumed, appellant told him she “had some Vodka earlier [in the] day.” Officer Zirk then performed field sobriety tests on appellant, including NYSTAGMAS, 1 for which there are a “total of three clues for each [eye].” These “clues” are indicators of intoxication.

Zirk observed “six out of six clues” in appellant, meaning that he observed an eye twitch in each of the three movement patterns of the pen on each of two eyes. On cross-examination, Zirk admitted that there were “about thirty ... reasons for NYSTAGMAS, other than alcohol in the body.” Officer Zirk also gave appellant a walk and turn test, during which he “ask[ed] [appellant] to stand on ... [an] imaginary line, ... placing the right foot in front of the left foot, touching heel to toe. We ask them to stand in this position with their hands down to their side while we explain and demonstrate the rest of the test for them ... to them.” Zirk testified that the walk and turn test has eight clues: losing ⁵⁴⁰ one’s balance during instructions, starting the test before instructions are finished, stopping while walking, failing to touch heel to toe, stepping off the line, using one’s arms for balance, improper turning, and taking the incorrect number of steps. Out of these eight clues, appellant exhibited six.

The third test administered to appellant was the one-leg stand. In this test, ,the subject raises one foot “approximately six inches off the ground, point[s][her] toe level with the pavement, hands down [her side], ... [and] eount[s] out loud ... for a period of thirty seconds.” Officer Zirk testified that appellant got to a count of eight, and then told him that her ankles were “bad.” He testified that appellant said nothing of her injury prior to the test. After concluding the three field sobriety tests, Officer Zirk placed appellant under arrest for driving while intoxicated (“DWI”). He then searched her truck, discovering a “full bottle of whiskey” in the vehicle.

Zirk next transported appellant to the police station for processing. He testified that during booking, appellant “was very loud and obnoxious[,] ... yelling at booking officers and she was very uncooperative[.]” Officer Zirk then went back on duty, but was called back to the station later that night because “appellant had tied her bra around her neck and [the officers] had to transport her to the hospital.” The State rested its case on the testimony of Officer Zirk. Appellant called Scott Murchison, her roommate and boyfriend of “five, six years,” to testify regarding appellant’s bad ankle. Appellant also took the stand in her own defense.

She testified that she was currently under psychiatric treatment, and that she sought such treatment because she had “lifetime major depression, and ... most prominent, ... post-traumatic stress syndrome.” Appellant related that, although she had taken medication for these afflictions in the past,, at the time of her arrest she “was feeling better” and “wasn’t having any of the anxiety and panic attacks like [she] used to have on a very frequent basis,” so she had stopped her medications. According to appellant, at about eight-thirty on the night in question, ⁵⁴¹ she was called by a friend, who asked her to pick him up at “a place called ‘Timbuktu’ ... in Dorsey, Maryland” because he had had “quite a bit to drink.” She was wearing a “MuMu-kind of dress .... and flip-flops. [The flip-flops were] not anything that you’d go out walking or playing in, or anything.” Her account of the night’s events, for the most part, mirrored Officer Zirk’s. Appellant stated that she had consumed a glass of vodka and iced tea at “no later ... than one-thirty in the afternoon.” Appellant testified that when the officer asked her to take the field sobriety tests, she became “very panicky” because she got nervous around “strange men.” When asked to describe her reaction, appellant explained: you get real lightheaded and, even though you don’t shake on the outside, your insides shake a whole lot, and you get kind of short of breath, and — you know I didn’t want to show that I was afraid or anything because, in my personal experience, people ... don’t know how to take somebody who suffers panic disorders, so I just kept smiling and laughing and saying, you know, “Oh, sure, I’ll do this, I’ll do that,” but I was really scared. Appellant recounted that during the field sobriety tests, because she was “apprehensive” about the police officers, she “was spending more time looking around th[a]n ... really ... listening.” She testified that it was difficult for her to perform the heel-to-toe test because “in those flip-flops, that are a little bit too big for you, if you touch heel-to-toe, you’re going to step on your own toes....

So, ... I just walked regular.” Appellant also said that she informed the officer of her ankle problem prior to the test. Appellant planned to call Dr. Leonard Hertzberg to testify as an expert psychiatrist. The State, however, filed a motion in limine to exclude the doctor’s testimony.

In proffering what Dr. Hertzberg would testify, appellant’s attorney explained: Dr. Hertzberg examined [appellant] on two occasions, he consulted her records, he read the police report, he dis ⁵⁴² cussed with [appellant] certain materials that she provided with regard to her past history. .He concluded from his evaluation of her that she did have certain disorders, psychiatric disorders[.] He would testify that she has certain disorders, including post-traumatic stress disorder, major depression, and borderline personality disorders; that these disorders would cause her, in a stressful situation, to react in a certain way, and ... that the pressure of being stopped by the officers, the pressure of her situation at the time, would cause her to react in a certain way, and that this behavior is in keeping with someone who manifests these psychiatric disorders. So, ... I would liken his testimony to an expert testifying that someone was unable to perform the one-leg stand because he had an injured ankle, or that he had problems walking, heel-to-toe, because of balance problems, so that the reason for Dr. Hertzberg’s testimony is that her disorders made her react in certain ways to the events that were happening to her on that occasion. That would be the nature of his testimony.

The State’s motion was granted by the court, so Dr. Hertz-berg did not testify. Appellant was convicted by the jury of driving under the influence, and acquitted of driving while intoxicated. This appeal followed. DISCUSSION Appellant’s sole contention on appeal is that the trial court erred in excluding the expert testimony of Dr. Hertzberg, a psychiatrist, who examined appellant after the incident in question.

Appellant proffered that Dr. Hertzberg would testify that appellant, who suffered from PTSD, may have had a panic attack when Officer Zirk began to investigate her for driving while intoxicated. Because she was not allowed to call her psychiatric expert to testify as to how her PTSD may have ⁵⁴³ influenced her behavior both before and after her arrest, appellant asserts that her case was prejudiced, warranting reversal of her DUI conviction. In ruling Dr. Hertzberg’s expert testimony inadmissible, the trial court explained its reasoning: The expert testimony of Dr. Hertzberg will not take place for several reasons. First of all, because this is a general-intent crime, her psychiatric nature at the time of the arrest and at the time of the alleged [crime] is not an issue.

It is a proper issue, perhaps, for mitigation; particularly, because the Defendant is pleading “not guilty,” and there is no NCR plea offered. Now, also I believe to have allowed the doctor to testify, it would be confusing to the Jury, because it does not go to the ultimate issue of guilt or innocen[ce]. Later in the trial, the court offered a third reason for its decision to exclude the doctor’s testimony, stating that “basically the information [in Dr. Hertzberg’s report] talks about the examination after the date in question, so it doesn’t change my ruling on the initial [m]otion.” Md. Rule 5-702, governing the use of expert testimony, provides: Expert testimony may be admitted, in the form of an opinion or otherwise, if the court determines that the testimony will assist the trier of fact to understand the evidence or to determine a fact in issue. In making that determination, the court shall determine (1) whether the witness is qualified as an expert by knowledge, skill, experience, training, or education, (2) the appropriateness of the expert testimony on the particular subject, and (3) whether a sufficient factual basis exists to support the expert testimony. “The admissibility of expert testimony is a matter largely within the discretion of the trial court, and its action in admitting or excluding such testimony will seldom constitute a ⁵⁴⁴ ground for reversal.” Oken v. State, 327 Md. 628, 659 , 612 A.2d 258 (1992), cert. denied, 507 U.S. 931 , 113 S.Ct. 1312 , 122 L.Ed.2d 700 (1993)(internal quotation marks and citations omitted).

Despite its broad discretion, a trial court’s “decision to admit or reject [expert testimony] is reviewable on appeal and may be reversed if it is founded on an error of law or if the trial court clearly abused its discretion.” Cook v. State, 84 Md.App. 122, 138 , 578 A.2d 283 (1990), cert. denied, 321 Md. 502 , 583 A.2d 276 (1991). Appellant cites Simmons v. State, 313 Md. 33 , 542 A.2d 1258 (1988), in support of her argument that the trial court abused its discretion in excluding Dr. Hertzberg’s testimony. In Simmons , the defendant was on trial for second degree murder. Asserting a defense of imperfect self-defense, Simmons sought to have an expert psychiatrist testify to his subjective belief that self-defense was necessary to avoid imminent bodily harm.

The defense attorney first proffered that the expert would testify that Simmons did in fact have such a belief at the time of the killing. Second, the defense attorney proffered that the expert would testify “that Simmons’s asserted subjective belief would be consistent with his psychiatric profile.” Id. at 36 , 542 A.2d 1258 . The trial judge excluded all of the expert’s testimony, ruling that the function of the jury would be “usurped” if the expert were allowed to testify. We affirmed.

The Court of Appeals granted certiorari, and reversed, explaining: [T]he trial judge excluded the proposed testimony on the grounds that the jury’s function would be usurped if the jury were to hear the psychiatrist testify that in her opinion Simmons acted under an honest belief that self-defense was necessary when he killed the victim. In light of defense counsel’s proffer that the expert would only testify that such a subjective belief would be consistent with Simmons’s psychological profile we find the trial judge’s ruling too broad. Id. at 40-41 , 542 A.2d 1258 . The Court also recognized that [t]he criminal defendant is generally permitted to introduce any evidence relevant to the asserted defense.

This will be ⁵⁴⁵ evidence which tends to establish or disprove a material fact. Id. at 41 , 542 A.2d 1258 . Simmons established two categories of psychiatric expert testimony, one which is inadmissible as a matter of law, and one which is admissible at the discretion of the trial court. The first category of testimony, under which the expert testifies that the defendant was in fact suffering from a specific psychiatric disorder on the date in question, is inadmissible as a matter of law because it usurps the jury’s function and because a psychiatrist “cannot precisely reconstruct the emotions of a person at a specific time.” Id. at 48 , 542 A.2d 1258 .

In the trial court’s discretion, however, an expert may testify as to a defendant’s psychiatric profile, from which the jury might infer that the defendant was suffering from the symptoms of that psychiatric disorder on the date in question. “[T]he proffered [expert] testimony has some relevance in that consistency between the specific subjective belief testified to by [the defendant] and [the defendant’s] psychological profile